Citation Nr: 9835666
Decision Date: 12/04/98 Archive Date: 12/15/98
DOCKET NO. 94-28 154 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for
diabetes mellitus.
2. Entitlement to an evaluation in excess of 10 percent for
tinea pedis.
3. Entitlement to service connection for an ulcer.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Steven D. Reiss, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1989 to
February 1992, including service in the Persian Gulf War.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from December 1992 and July 1993 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Winston-Salem, North Carolina. In the
December 1992 rating decision, the RO granted service
connection for diabetes mellitus and assigned a 20 percent
rating, effective February 25, 1992. In the July 1993 rating
action, the RO granted service connection for tinea pedis and
assigned a noncompensable rating, effective February 25,
1992, and denied service connection for an ulcer. The
veteran expressed timely disagreement with each of these
determinations, and this appeal ensued.
During the course of this appeal, in August 1998, the RO
increased the rating for tinea pedis to 10 percent, effective
August 20, 1997. However, inasmuch as the veteran is
presumed to seek the maximum available benefit for a
disability, see AB v. Brown, 6 Vet. App. 35, 38 (1993), and
higher evaluations are available for his tinea pedis, his
claim for increased rating remains viable on appeal.
Further, in a statement received in February 1994, the
veteran asserted that he was too ill to work, and stated,
“Please consider 100% due to unemployability.” The Board
concludes that the veteran has asserted an informal claim for
a total disability rating based on individual unemployability
due to service-connected disabilities. This claim is
referred to the RO appropriate action.
REMAND
It appears from a review of the claims folder that, in July
1994, the RO received one page of an undated decision of
Social Security Administration (SSA) that shows that the
veteran’s claim for disability benefits was denied. In a
letter to VA dated in August 1994, however, the veteran’s
attorney indicated that the veteran was again seeking
disability benefits from the SSA. The clinical evidence upon
which the SSA decision was based is not of record, and it is
unclear whether the veteran was subsequently granted
entitlement to such benefits. The Board concludes that a
review of these records may be potentially relevant to the
veteran’s appeals, and as such, this matter must be remanded
in order to associate these records with the claims folder.
With respect to the veteran’s claim for an increased rating
for his service-connected diabetes mellitus, the evidence
reflects that this disorder requires insulin and a restricted
diet, and that he has experienced episodes of ketoacidosis
and has had hypoglycemic reactions. The veteran has also
been hospitalized to treat this disorder. The evidence,
including the recent VA examination reports, however, is
silent as to whether the veteran’s diabetes mellitus requires
that his activities be regulated. As such, because the
medical evidence does not indicate the presence or absence of
some of the criteria necessary to evaluate the veteran’s
claim for an increased rating for his diabetes mellitus, the
Board concludes that further development is required. Allday
v. Brown, 7 Vet. App. 517, 527 (1995).
In addition, the Board notes that, effective June 6, 1996, VA
revised the criteria for evaluating disorders of the
endocrine system. 61 Fed. Reg. 20440 (1996). Where the law
or regulation changes after a claim has been filed or
reopened but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
veteran applies. Dudnick v. Brown, 10 Vet. App. 79 (1997);
Karnas v. Derwinski, 1 Vet. App. 308 (1991). Accordingly, in
considering the veteran’s claim of entitlement to an
increased evaluation for his service-connected diabetes
mellitus, the RO must consider that portion of the VA
Schedule for Rating Disabilities (Rating Schedule) relating
to the disorder as it was in effect prior to June 6, 1996, as
well as the revisions that became effective on that date.
Finally, the Board notes that in a May 1994 rating decision,
the RO established service connection for pancreatitis and
assigned a noncompensable evaluation, effective February 25,
1992. In the rating action, the RO also denied service
connection for “joint pain of the elbows, ankles and
hands.” In a statement dated and received in July 1994, the
veteran expressed disagreement with each of these
determinations; however, the RO has not issued the veteran a
Statement of the Case with respect to these claims.
In light of the foregoing, the Board is REMANDING the case
for the following actions:
1. The RO should request that the
veteran submit a list (names, dates and
addresses) of all sources of treatment
(VA, private, and other) that he has
received for his diabetes mellitus, tinea
pedis and for an ulcer since his
discharge from active duty. After
securing any necessary release form(s),
the RO should directly contact the
sources that are identified and obtain
copies of the relevant records in their
possession that are not already in the
claims file, and associate all such
records obtained with the claims file.
Regardless of whether the veteran
responds to the RO’s inquiry, the RO
should request and associate with the
claims file all medical records
pertaining to the veteran, including
records from the SSA, to include
complete copies of any disability
determination(s) it has made concerning
the veteran and copies of the medical
records upon which any such decision was
based. The SSA should also be asked to
provide records of any subsequent
examinations as well as any other
pertinent records with respect to the
veteran. The aid of the veteran and his
representative in securing any other such
records should be enlisted, as needed.
However, if any requested records are not
available or the search for any such
records yield negative results, that fact
should clearly be documented in the
claims file.
2. The RO should issue the veteran a
Statement of the Case with respect to his
claims of entitlement to an increased
rating for his service-connected
pancreatitis and to service connection
for joint pain of the elbows, ankles and
hands, to include notification of the
need to timely file a substantive appeal
to perfect his appeal on that issue.
3. Upon completion of the above
development, or after a reasonable amount
of time has been provided to identify or
submit additional evidence, the veteran
should undergo a VA examination, by an
appropriate specialist, to determine the
current nature and extent of his diabetes
mellitus. It is imperative that the
physician who is designated to examine
the veteran review the evidence in his
claims folder, including a complete copy
of this REMAND. The report of the
examination should reflect consideration
of the veteran’s pertinent medical
history and complaints. All necessary
tests and clinical studies should be
accomplished, and the findings must be
reported in detail. The physician also
should address the following:
a. whether the diabetes mellitus
requires insulin, a restricted diet and
regulation of activities;
b. whether the diabetes mellitus is
productive of episodes of ketoacidosis or
hypoglycemic reactions;
c. whether the diabetes mellitus is
manifested by a progressive loss of
weight and strength;
d. whether the diabetes mellitus is
productive of a considerable loss of
weight and strength;
e. whether the diabetes mellitus is
productive of pruritis ani, mild vascular
deficiencies;
f. whether the diabetes mellitus is
productive of beginning diabetic ocular
disturbances; and
g. whether the veteran has been
hospitalized to treat his diabetes
mellitus, and if so, how frequently since
1992.
The report of the examination should be
typewritten. The examiner must set forth
the rationale underlying any conclusions
drawn or opinions expressed, to include,
as appropriate, citation to specific
evidence in the record.
4. To help avoid future remand, the RO
should ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. See Stegall v. West, 11 Vet.
App. 268 (1998). If actions taken are
deficient in any manner, appropriate
corrective action should be undertaken.
5. After completion of the foregoing
requested development, and after
completion of any other development
deemed warranted by the record, the RO
should consider the veteran’s claims of
entitlement to increased ratings for his
diabetes mellitus and his tinea pedis, as
well as his claim for service connection
for an ulcer, in light of all pertinent
evidence of record, and all applicable
laws, regulations, and case law. In
readjudicating the veteran’s claim for an
increased rating for his service-
connected diabetes mellitus, the RO must
consider the criteria for rating the
disorder that was in effect prior to June
6, 1996, as well as the new criteria for
rating disorders of the endocrine system
effective on that date, rating the
veteran under whichever is more favorable
to him. Dudnick, Karnas. The RO must
provide adequate reasons and bases for
its determinations, citing to all
governing legal authority and precedent,
and addressing all issues and concerns
that were noted in the REMAND.
6. If any benefits requested by the
veteran continue to be denied, he and his
representative must be furnished a
Supplemental Statement of the Case and
given an opportunity to submit written or
other argument in response before the
case is returned to the Board for further
appellate consideration. However, the
appellant and his representative are
reminded that Board review over any issue
not currently in appellate status (to
include the claims for an increased
rating for his service-connected
pancreatitis and for service connection
for joint pain of the elbows, ankles and
hands) may be obtained only if a timely
notice of disagreement and, after
issuance of a statement of the case, a
timely substantive appeal are filed.
The purpose of this REMAND is to accomplish additional
development, and it is not the Board’s intent to imply
whether the benefits requested should be granted or denied.
The veteran need take no action until otherwise notified, but
he may furnish additional evidence (to include any supporting
statements from his former service comrades) and/or argument
while the case is in remand status. See Colon v. Brown, 9
Vet. App. 104, 108 (1996); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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